Earlier this year, California enacted SB 27, which requires presidential candidates to disclose 5 years’ tax returns as a condition of appearing on the state’s presidential preference primary ballot. For reasons I outline in Weaponizing the Ballot, I think such a law exceeds the state’s authority to regulate the “manner” of holding elections.
There are many alternative reasons, of course, why such a law might fail. A federal judge enjoined the law today and announced his decision from the bench in a set of five consolidated challenges to the law. The reasons will come by October 1. But it’s worth noting a take from early news reports:
Morrison spent much of the court proceeding on the question of whether a longstanding federal financial disclosure law preempts any additional rules that a state could impose.
The federal law, known as the Ethics In Government Act, or EIGA, was originally passed in 1978 and applies to a range of top federal officials. Trump has filed the annual report, most recently in May, which provides an overview of his finances.
“Do we even need to get here if EIGA preempts [the new California law]?,” England asked attorneys for the state. “Is that it?”
That is, rather than address the tough constitutional questions, the judge may well avoid them (at least, as best he can!) and conclude that California’s law is preempted by federal statute.
To summarize from my piece Weaponizing the Ballot, here’s what federal law currently requires (footnote omitted):
Prominently, Congress passed the Ethics in Government Act of 1978, which requires disclosures of financial information of certain government officials to the public. Within thirty days of assuming office, the President and Vice-President must file financial disclosures about their sources of income, payments to charitable organizations, property they hold, debts they owe, and more. The President and Vice-President continue to file these reports annually, including identifying gifts, reimbursements, sale of property and stocks, the cash value of any blind trust, and other disclosures for spouses and dependent children. In 2012, Congress added to some of these disclosures and required that these disclosures must be made available on the Internet. While disclosures are published for the President and Vice-President, reports for most other government official require a specific request. Certain information might be kept confidential for lower level officials or if the information might compromise the national interest of the United States.
Presidential and congressional candidates also must file similar statements within thirty days of declaring as a candidate. Federal law also requires disclosure of certain activities of campaigns, including disclosure of contributions to the campaign and expenditures from the campaign.
You can view current disclosures of the president and vice president here.
UPDATE: I’m told the express preemption language from the original EIGA has been repealed in 1989, so I’ve removed that block quotation.
UPDATE: Current law provides, “The provisions of this title requiring the reporting of information shall supersede any general requirement under any other provision of law or regulation with respect to the reporting of information required for purposes of preventing conflicts of interest or apparent conflicts of interest,” but this provision does not expressly mention state law.
It’ll be worth seeing all the reasons the court articulates for enjoining the law, and, of course, what happens on appeal. But it’s also worth noting that while it avoids the constitutional questions, it also avoids answering questions in the event states require other disclosures—say, medical records or school transcripts—as a condition of ballot access.